LSB September 2018_Web

INDUSTRY REGULATION
Advocating for improved health
care for the community
ADJ ASSOCIATE PROFESSOR ELIZABETH DABARS AM, CEO/SECRETARY,
AUSTRALIAN NURSING & MIDWIFERY FEDERATION (SA BRANCH)
The Australian Nursing and Midwifery
Federation (SA Branch) is the
professional and industrial organisation
representing more than 20,500 nurses,
midwives and assistants in nursing across
SA.
Our community is entitled to high
quality, safe, effective and accessible health
care. This must be based on the best
available evidence.
Scope of regulation, protection of
practice and scope of practice are three
particular areas of interest.
SCOPE OF REGULATION
Registered and Enrolled Nurses and
Midwives are regulated health practitioners
under the Health Practitioner Regulation
National Law (South Australia) Act 2010
(National Law). Its principal objective is
to:
“...provide for the protection of the public by
ensuring that only health practitioners who are
suitably trained and qualified to practise in a
competent and ethical manner are registered.” 1
Regulation in the public interest brings
with it the concepts of protecting the
public by measuring practitioners against
the accepted professional standards, acting
to deter both the practitioner in question
and other practitioners from departing
from those standards and to reassure the
community of the continuing expectation
that practitioners will meet the standards. 2
Importantly, professional regulation
ensures practitioners seeking to register,
or re-register, not only meet the required
education and professional standards, but
also meet the “fit and proper person” test. 3
As was held by Walters J in Sobey v
Commercial and Private Agents Board [1979]
22 SASR 70, considerations as to whether
a person is “fit and proper” does not just
relate to their education or knowledge
base, but also:
“...that he [sic] is possessed of sufficient moral
integrity and rectitude of character as to permit
him to be safely accredited to the public, without
further enquiry, as a person to be entrusted with
this sort of work which the licence entails...”
The NSW Court of Appeal judgment in
Zaidi v Health Care Complaints Commission
[1998] 44 NSWLR 81, made clear that the
issue of “fit and proper”:
“... is a question of his worthiness and his
reliability for the future.”
The onus is therefore on the registering
authority to ensure they are looking
to the past and present circumstances
of a person’s character, morality and
trustworthiness, in order to assess possible
future conduct, in the public interest.
Regulation offers an effective framework
for educational rigour, professional
practice standards and codes of conduct,
combined with the “fit and proper person”
test. These all contribute to providing
the public with an important level of
protection and confidence in their health
professionals.
It is for these reasons that we believe
the (currently) unregulated workforce of
Assistants in Nursing (AINs) - sometimes
known as personal care assistants - should
also be regulated by the NMBA.
AINs currently provide the vast majority
of nursing services in residential aged
care. Up to 80 percent of the residential
aged care workforce is estimated to consist
of care workers, with only 15 percent of
the remaining workforce represented by
regulated nurses (Registered and Enrolled
Nurses).
Residents in Aged Care Facilities are
among the most vulnerable members of
our community. Residential care needs
and the complexity of that care has been
growing exponentially as the age and
fragility of that population grows.
Educational preparation of AINs is far
from standardised and can range from two
weeks to twelve months depending on the
training provider.
AINs are required to produce a criminal
history check. However, the standard
of proof to the criminal standard is
significantly different to that required
under professional regulation. The
regulator can make a determination on
“the balance of probabilities” that the
alleged behaviour occurred, having regard
to the seriousness of the allegations as
described by Briginshaw v Briginshaw [1938]
HCA 34. As a result, a matter that could
never be proved in a criminal court can be
considered and dealt with by a regulator.
Further, not all convictions may be
revealed due to the operation of the Spent
Convictions Act 2009 (SA). This is unlike the
regulatory scheme where the regulator is
able to view a full picture of past history,
including any charges that may not have
resulted in any findings of guilt.
Whether to add AINs to the list of 15
regulated health professionals is within
the gift of the Sate and Territory Health
ministers, should they reach agreement on
the issue at COAG.
As a result of our advocacy in this area,
some measures have been put in place to
provide some (pseudo) regulation of this
unregulated workforce. Specifically, the
creation of the National Code of Conduct
for Health Care Workers. Related to this
are the provisions under the Health and
Community Services Complaints Act (SA) 2004
that enable the Health and Community
Complaints Commissioner to investigate
complaints against and deliver a prohibition
order on the practice of unregulated heath
care workers, including AINs (Health and
Community Services Complaints Act (SA) 2004,
Part 6, Division 5).
However, notwithstanding that there are
penalties for breaching prohibition orders,
we remain concerned that there are gaps
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THE BULLETIN September 2018